Trump vs. the Constitution

On Sunday afternoon, September 17, Tenth Dems University presented Trump vs. the Constitution, a lecture by Martin H. Redish, Louis and Harriet Ancel Professor of Law and Public Policy, Northwestern University School of Law. Hosted by Lake Forest College, the event, which aptly fell on Constitution Day, drew a near capacity crowd of more than 150. Constitution Day commemorates the signing of the U.S. Constitution 230 years ago, on September 17, 1787.

Professor Redish began with a list of what he termed six “methods of tyranny,” which he reviewed against the actions of President Donald Trump:

INTIMIDATION OF THE PRESS

INTIMIDATION OF THE JUDICIARY

CLOUDING THE TRUTH

PORTRAYING THE LEADER AS SAVIOR

APPROVAL OF AUTHORITARIAN LEADERS AND INTEREST GROUPS

SCAPEGOATING OF VULNERABLE MINORITIES

The professor then turned to the reasons why he is cautiously optimistic that our democracy will survive this presidency as he closely examined the U.S. Constitution’s safeguards against tyranny.

As Professor Redish reminded the audience, our Constitution was constructed specifically to prevent the rise of tyranny. The founders understood that an executive is necessary for the practical implementation and enforcement of the laws that the legislature enacts and for overseeing the military, but they also recognized that the history of previous republics shows that the greatest threat of tyranny comes from that branch of government. So they devised a well thought-out governmental structure that would rein in the executive. In addition, they created federalism, our system of reserving some powers of government to the states.

With reference to The Federalist Papers, Professor Redish ticked off some of the specific characteristics of what he called the American Constitutional structure as tyranny avoidance:

First, unlike the British from whom America’s founders had just successfully broken, the founders created a written constitution that could not be interpreted or neglected on the whim of King or Parliament.

Second, because they basically did not trust anyone not to seek absolute power, the founders created three co-equal, separate, branches of government. Each branch would have defined functions that would act as a check on one another: Congress legislates and controls appropriations; the President executes and enforces the laws passed by Congress, spending the funds Congress appropriates. The President also manages foreign policy but only Congress can declare war. And the ultimate check on presidential power is the independent federal judiciary. Insulated from politics by lifetime tenure, federal judges can nullify laws or executive actions that violate the Constitution. As Chief Justice John Marshall wrote in Marbury v. Madison (1803), the Constitution is a check on the political branches, without which there would be no stopping their accumulation of power. Ever.

Third, Article 5 of the Constitution allows for the amendment of the Constitution but only by means that require super majorities. This prevents tyranny by the simple majority. Neither the President, the Congress, the states, nor the people by themselves can change the Constitution and the protections it gives.

Fourth, protections for individuals are written into the first eight amendments to the Constitution, which, with the next two, we call the Bill of Rights. Unlike the British unwritten constitution, these rights are stipulated in black and white. And our independent judiciary protects these individual rights from the executive and legislative branches’ excesses.

Fifth, while the states are subordinate to the federal government, they are yet autonomous in that they have rights that may not be overridden nor subsumed by the power of the federal government. This provides yet another check on the potential tyranny of the center of power. So, for example, the Trump Election Commission could not constitutionally control the process of elections, because this power resides with the states. Still, the federal government, as it did in 1964 with the Voting Rights Act, may legislate to ensure that no state deprives anyone of the right to vote on the basis of race.

Professor Redish concluded his talk with more specific examples of Trumpian threats to these constitutional protections, including the Muslim ban and disrespect of the judiciary. For example, in Professor Redish’s view the pardon of Sheriff Joe Arpaio threatens the power of the judiciary, because Arpaio’s crime, that Trump’s pardon excused, was to defy a court order that he cease engaging in specific unconstitutional activities. Professor Redish’s New York Times op-ed on this topic can be accessed at https://www.nytimes.com/2017/08/24/opinion/trump-arpaio-pardon-arizona-sheriff.html?mcubz=0&_r=0

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